Ermington Projects Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ermington Projects Pty Ltd v City of Parramatta Council [2024] NSWLEC 1152

Hearing dates:

27, 28 September 2023, 8 and 30 November 2023

Date of orders:

3 April 2024

Decision date:

03 April 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld and the Modification application, as amended, is granted.

(2) Development consent No. DA/399/2020 is modified in the terms in Annexure A.

(3) Development Consent No. DA/339/2020 as modified by the Court is Annexure B.

(4) The Exhibits are returned except Exhibit A.

Catchwords:

APPEAL – modification – application direct to Court – Court ordered consent at s 34 conference for child care centre – deletion of deferred commencement condition to create s 88K drainage easement over public school land – whether easement reasonably necessary – whether modified on site stormwater drainage system adequate – whether substantially the same development – unencumbered space in child care centre

Legislation Cited:

Conveyancing Act 1919, s 88K

Children (Education and Care Services National Law Application) Act 2010

Environmental Planning and Assessment Act1979, ss 4.15, 4.16, 4.55

Land and Environment Court Act1979, s 17

Education and Care Services National Regulations, reg 108

Parramatta Local Environmental Plan 2023

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.26

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292

Gordon v Lever (No 2) (2019) 101 NSWLR 427; 2019] NSWCA 275

Elias v Parramatta City Council [2021] NSWLEC 1332

Houlton v Woollahra Council (1997) 95 LGERA 201 at 203

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143

Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342

Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599

Texts Cited:

City of Parramatta Development Engineering Design Guidelines, June 2018

Upper Parramatta River Catchment Trust Onsite Detention Handbook 3rd Edition

Parramatta Development Control Plan 2023

City of Parramatta Stormwater Disposal Policy, 7 December 2020

Category:

Principal judgment

Parties:

Ermington Projects Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
M Harker (Respondent)

Solicitors:
Madison Marcus (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2022/382243

Publication restriction:

No

JudgmenT

1. COMMISSIONER: This is a Class 1 appeal directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act1979 (EPA Act) and s 17(d) of the Land and Environment Court Act 1979 (LEC Act) to modify, pursuant to s 4.55(2) of the EPA Act, development consent No DA/399/2020 (the Consent) granted by the Court on 8 June 2021 following a s34 Conference: Elias v Parramatta City Council [2021] NSWLEC 1332. The Consent was granted by the Court for the demolition, tree removal and construction of a two-storey 78 place child care centre with basement car parking (Approved Development) on land at 379 Kissing Point Rd, Ermington NSW, known as Lot 12 DP 869307 (the Site).

2. The Class 1 appeal was commenced on 19 December 2022 and with leave of the Court, the Applicant amended the Modification Application on 29 June 2023 and again on 27 September 2023.

The Site & Locality:

3. The Site is an irregular shaped allotment and has a frontage to Kissing Point Road of 19.52 metres, a northern boundary of 56.145 metres, a southern boundary of 64.59 metres and a rear boundary of 18.9 metres (with a minor kink). The total site area is 1,156 m².

4. The topography of the Site is important given the main issue before the Court. Council stated in the Further Amended Statement of Facts and Contentions dated 28 September 2023 (FASOFAC) that “the site has a slight slope from the street down to the south-western corner of the allotment of approximately 1.5 metres over the distance of 64.59 metres.” This is not a complete description of the slope across the land relative to the street. The Council does not state the critical parameter of the slope where the subject land meets the public footpath and gutter where the legal discharge point is at Kissing Point Road. My observations on the view were that the Site does not slope away from the street frontage but rather rises up from the street. In other words, when standing in the front yard of the existing dwelling looking at the street, the gutter at the edge of the footpath is below the front boundary of the land and there is natural gravity flow to the Council’s gutter in Kissing Point Road. This is confirmed by the Survey in evidence: Tab 17 of Ex A. True it is that at the midpoint of the land slopes slightly down to the south-western corner which is what Council is referring to in the FASOFAC. In my opinion that does not meet the term used in the controls of ‘sites that fall away from the street’. The reference point is the street, not some indeterminate spot on the private land itself.

5. The Site is located within a R2 Low Density zone under the Parramatta Local Environmental Plan 2023 (PLEP 2023) and centre based child care facilities are permitted with consent. The Site is currently occupied by a single weatherboard dwelling house, with swimming pool and associated outbuildings. Immediately to the north and north-west, the site is adjoined by single-storey dwellings, including a battle-axe, which relies upon the site for access by way of an easement. To the south the site adjoins Ermington West Primary School (public school land) and across the road towards the south-east is a large seniors housing development.

Proposed Modification Application:

6. The amended Modification Application (Proposed Modification) before the Court for hearing seeks the following changes to the Consent:

“The deletion of deferred commencement condition 1 of the Consent, which states:

Pursuant to the provisions of section 4.16(3) of the EPA Act the development application be granted a deferred commencement consent subject to the completion of the following:

Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water 1.0 metre wide, over the downstream property known as 383, Kissing Point Road (Ermington West Public School), benefiting the development site has been registered with NSW Land Registry Services.

Note: Deferred commencement condition 1 of the Consent was required to be satisfied within 24 months of the grant of the Consent (ie 7 June 2023). However, due to COVID this period was extended to 5 years by operation of s 4.53(6)(b) of the EPA Act (ie extended to 7 June 2026).

Alterations to the approved stormwater management system. Rather than disposing of stormwater via a proposed easement over an adjoining school as contemplated by deferred commencement condition 1, the Applicant proposes to drain almost all of the Site to Kissing Point Road by way of an extension to the Council’s piped infrastructure of approximately 35m. The Applicant also proposes to relocate the approved On-site Stormwater Detention (OSD) system and connect the relocated OSD system directly to the Council’s extended piped infrastructure: see Revised Stormwater Concept Plans, Ex A, tab 14.

Changes to the approved landscaping as a result of the alterations to the approved OSD system including the removal of Tree T3 – Bottle Brush (which is to be retained under the Consent).

A reduction in the number of child care places from 78 to 75 places as a result of a reduction in the unencumbered outdoor play area at ground level from 359m² to 347m².”

7. On the deletion of the deferred commencement condition the Consent would become operational and the Applicant sought the additional changes to the Consent noted above in paragraphs (b), (c) and (d).

Issues for determination:

8. The principle issue in the appeal is whether the Applicant’s proposed stormwater disposal system to discharge to Kissing Point Road at the front of the site is appropriate and adequate in place of a s88K drainage easement through the Ermington Public School land at the rear of the site as required by deferred commencement condition 1 of the Consent. If it is adequate, condition 1 is otiose and can be deleted. Consequential changes to the On Site Detention (OSD) system raise some minor modifications to the development including unencumbered space in the outdoor play area.

9. It is noted that an application to the NSW Department of Education for an easement over the public school land was made and refused in writing by the Department on the basis that it was “not reasonably necessary for the effective use or development of the land”, the threshold jurisdictional test under s 88K(1) of the Conveyancing Act1919 (Conveyancing Act) (NSW Department of Education letter dated 14 September 2021, Tab 19 of Ex A).

The Court’s power to modify – jurisdictional requirements:

10. As this Class 1 appeal is an application to the Court to modify the Consent granted by it, the power to allow the appeal and approve the modification application derives from s 4.55(8) of the EPA Act and s 17(d) of the LEC Act.

11. I note that the Council did not challenge the Proposed Modification on the basis that the modifications result in a development that is not “substantially the same development” as the Consent, the jurisdictional threshold under s 4.55(2)(a) of the EPA Act for the exercise of power to modify a development consent. The Court must still be satisfied that the power exists on the facts of this case.

Section 4.55(2)(a) “Substantially the same” test

12. The power to modify a consent is a power “to alter without radical transformation” the consent: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342. The result of the comparison between the original consent and the consent as modified must be a finding that the development is “essentially” or “materially” the same as the approved development: Arrage v Inner West Council [2019] NSWLEC 85; Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599.

13. The Proposed Modification in my opinion results in a development which is substantially the same as originally approved because the proposed modifications:

1. Maintain the proposed use, overall maximum height and general envelope of the proposed child care centre building & associated structures;

2. Proposes a minor change in the number of children it can accommodate from 78 to 75 which is not material to the overall use and development and if anything, is of a lesser impact on neighbours;

3. Although there will be minor changes in the landscaped area, including the removal of a tree, the changes will not be material in the streetscape; and

4. The Consent already has provision for an approved pump out OSD system for stormwater disposal and the changes to the OSD system are not such that it could be argued a material change has occurred and the development is not ‘substantially the same development’ as the Consent originally granted by the Court.

14. Council did not argue that deleting the deferred commencement condition for a s88K easement breached the s 4.55(2)(a) EPA Act jurisdictional test. Deleting the condition to acquire an easement (which was refused by the NSW Department of Education) requires remodelling the OSD system and landscaping changes but as I have said above, those changes do not result in a development that is not substantially the same. Deleting the condition is a legal change at best but does not materially alter the physical and developmental aspects of the proposed child care centre on the Site. It is to be remembered that the power to modify is beneficial and facultative: Houlton v Woollahra Council (1997) 95 LGERA 201 at 203; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; at 475 and 482. The Applicant has tried to satisfy the deferred commencement condition and the application was refused (Tab 19 of Ex A).

Section 4.55(2)(b) Consultation/Concurrence

15. The Council was not required to and has not consulted with any relevant Minister, public authority or approval body pursuant to s 4.55(2)(b) of the EPA Act.

Sections 4.55(2)(c)-(d) Public Notification

16. The Council failed to notify the Modification Application as required by s 4.55(2)(c) of the EPA Act prior to the hearing or in the days after the hearing as requested by the Court. On 31 October 2023 the Council informed the Court that the notification would occur between 2-23 November 2023. I directed the Council to provide an affidavit setting out reasons why notification had not occurred. The affidavit was filed, and read in the proceedings on 8 November 2023. I accepted Council’s reasons set out in the affidavit of Christopher John Campbell, sworn 6 November 2023, but note that the pausing of the hearing whilst notification occurred did cause the finalisation of the hearing to be delayed. I could not determine the Proposed Application until notification had occurred and the Court and the parties had considered any submissions received.

17. Once this notification had occurred, the Council had complied with its statutory obligations under s 4.55(2)(c) of the EPA Act. A supplementary bundle of documents was filed by Council on 30 November 2023 which included correspondence from Council and written submissions from the residents of 377A Kissing Point Rd and 375 Kissing Point Rd (Ex 5). I have considered these submissions and am satisfied the statutory requirement under s 4.55(2)(d) of the EPA Act has been met. The parties have considered the submissions and the objectors have been accorded procedural fairness.

18. At the commencement of the hearing, the Court also heard oral submissions from a resident of 377A Kissing Point Rd during the site inspection because the resident happened to be present. This was very useful but did not alleviate the need for the notification required by the legislation as stated above.

Section 4.55(3) matters

19. To the extent relevant to the development, the subject of the modification application, I have considered the matters referred in s 4.15(1) of the EPA Act which include the provisions of the PLEP & the Parramatta Development Control Plan (PDCP) referred to elsewhere in this judgment. The reasons for the grant of Consent in this matter derive from the judgment of Elias v Parramatta City Council [2021] NSWLEC 1332 (Elias) which I have read. Commissioner Chilcott also referred to the relevant Environmental Planning Instruments and considered the jurisdictional requirements at paras [8, 9]. The development as modified will be characterised as ‘demolition existing structures, tree removal and construction of a two-storey child care centre with basement car parking’ which is permissible with consent in accordance with Zone R2 Low Density Residential under the PLEP. The proposal as modified remains consistent with the planning controls and assessment that lead to the grant of Consent. I accept the reasoning and conclusions in the Statement of Support updated 26 September 2023, prepared by Mr Barwick, SJB Planning, for the Applicant (Tab 15 of Ex A).

20. I find that the Proposed Modification is substantially the same as the Approved Development the subject of the Consent for the purpose of s 4.55(2)(a) EPA Act and all other relevant matters under s 4.55 are satisfied to enliven the Court’s jurisdiction.

Statutory & Non-statutory Controls:

21. The demolition works and construction for the permissible use of the Site as a child care centre has been assessed and determined by the Court through the s34 Conciliation Conference as reflected in the judgment of Commissioner Chilcott granting the Consent subject to conditions in Elias.

22. The issues in this modification appeal largely concern technical engineering matters and the consequences to the approved child care centre of the relocation within the Site of modifying the approved OSD and consequential landscaping changes, as detailed above at paragraph [6].

23. There was some disagreement between the Applicant and the Council as to the statutory and non-statutory controls that apply to the Court’s consideration in determining this Proposed Modification.

24. In respect of the stormwater disposal Contention 4, I find that the following statutory and non-statutory controls are applicable and relevant to my consideration and this was ultimately agreed between the parties during the hearing:

1. PLEP 2023

2. Parts 5.1.3 and 5.1.4 of the PDCP 2023

3. Sections 1-7 and Appendices of the Upper Parramatta River Catchment Onsite Detention Handbook (3^rd Edition)

4. Sections 1-3 of the City of Parramatta Development Engineering Design Guidelines (June 2018) (Development Engineering Design Guidelines) (called up by the PDCP 2023)

5. City of Parramatta Stormwater Disposal Policy (7 December 2020) (Stormwater Disposal Policy)

25. What was not agreed was whether State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP), in particular s 3.22, and the Education and Care Services National Regulations 2011 (E&CSN Regulations) apply to the consideration of Contention 2. This is discussed below.

Contentions and Council’s final position at hearing:

26. On the second day of the hearing the Council, with leave, further amended the 31 July 2023 Amended SOFAC. Some matters were deleted and other particulars of Contention 4 added.

27. The FASOFAC arose largely out of joint conferencing and cross examination of the town planners, Mr Barwick (Applicant) and Mr Wan (Council) on the first day of hearing.

28. The contentions of the Council, quoting from the FASOFAC, state as follows:

“CONTENTION 2 - UNENCUMBERED PLAY AREA

2. The amended application should be refused because the OSD system which is proposed includes stormwater inlets Pit 7 pits, and a level spreader within the unencumbered outdoor play areas of the approved childcare centre facility, posing a risk to children. Further, the amended application includes a new retained area around the tree at the rear, which should not be included as play area. This will necessitate further reduction of the overall quantum of outdoor play space, and child care places.

Particulars

(a) Deleted.

(b) Deleted.

(c) The stormwater inlet Pit 7 pits and level spreader should be fenced from the play area.

(d) The Applicant is required to demonstrate how the changes to the      unencumbered play area, as a result of the fencing of the pits and level spreader, will appear by providing detail on amended architectural plans and landscape plans, including the area of the resulting unencumbered play space.

(e) deleted.

(f) Trapped low points are not to be piped but the site must be graded at minimum 1% towards storage.

CONTENTION 4 – STORMWATER

4. The amended application should be refused because the proposed design of the OSD system is not in accordance with the Respondent’s stormwater management requirements due to issues with catchment management, impacts on neighbouring properties and technical design issues.

Particulars

The relevant criteria are set out at:

Clause 3.3.6.1 of Part 3 – Stormwater Drainage of PDCP 2011

The Upper Parramatta River Catchment Onsite Detention Handbook 3^rd Edition, Sections 1-7 & Appendices

The Respondent’s Development Engineering Design Guidelines, Sections 1-3

City of Parramatta Stormwater Disposal Policy.

The proposed stormwater system fails to drain the whole site to a legal discharge point contrary to the Respondent’s Development Engineering Design Guidelines: Section 1, Part 2.0 General Requirements.

The development concentrates flows over downstream properties without an easement contrary to the Respondent’s Development Engineering Design Guidelines: Section 1: 4.1

The proposed stormwater system proposes a significant extension of the Respondent’s Stormwater System to accommodate the development, contrary to the Respondent’s Development Engineering Design Guidelines: Section 1: 4.1

Deleted.

The proposed stormwater system does not utilise best practice stormwater design principles, in particular:

Stormwater is to be discharged in the general direction as determined by the predevelopment topography of the site and within its natural catchment/subcatchment. Filling of sites to achieve discharge by gravity is not supported.

A swale has not been provided to be prevent the OSD from unintentionally surcharging from external flows entering the site.

Emergency overflows must be accommodated and designed for and shall include such flows resulting from storm events that exceed the design capacity of the OSD system and for flows resulting from a failure of the system (including the OSD facility, pit and pipes belonging to and as part of the system and pit and pipes and flow paths within a stormwater drainage easement).

Development that requires on site detention on sites that fall away from the street or are flat are required to drain via an easement over a downstream property (or properties) to a legal point of discharge

Adequate provision is to be made for the control and discharge of stormwater run-off from the site to ensure that it has no adverse impact on Council’s stormwater drainage systems, waterways, the development itself, or adjoining properties.

Council repeats (a) to (d) and relies further upon the controls in part 5.1.3 and 5.1.4 of the Parramatta Development Control Plan (DCP) 2023.”

Evidence and Conduct of the hearing:

29. Joint Expert Reports were prepared and filed on 31 August 2023 prior to the hearing as follows:

1. Mr Scott Barwick (SB) (Applicant) and Mr Daren Wan (DW) (Council), town planners, on Outdoor play area – unencumbered space - Contention 2 (Ex E); and

2. Mr Joe Bacha (JB) (Applicant) and Mr Martin Warda (MW) (Council), engineers, on Stormwater drainage – Contention 4 (Ex F).

30. Both the Applicant and the Council amended their positions after these reports were served. The Council raised new issues in the particulars.

31. On the first day of the hearing the town planners, SB and DW, gave evidence in the witness box on the unencumbered and encumbered outdoor space issue and were cross examined. My analysis and findings on this evidence are set out below.

32. On the second day of the hearing and prior to their cross examination, the engineers (JB and MW) were directed to joint conference on firstly, whether proposed Pit 7 and low points at the north west corner posed safety risks to kids, factual issues within their expertise in relation to Contention 2, and secondly, on the remaining particulars of Contention 4. They produced a second Joint Report which sets out their agreement in respect of Contention 2 and agreement or otherwise in respect of Contention 4 (i.e. the paragraphs that remained in issue after Council had further amended the SOFAC set out above) as follows (Ex J):

“Contention 2 - MW (R) & JB (A) agree that Pit 7 can be designed in a manner which is safe for kids. This can be achieved by heel proof gate or adopting the same gate as the floor wastes. Access to the pit can be restricted by placing a drainage cell & turf over it. This will also address the concerns with blockage. AW and JB agree this can be addressed by condition of consent.

Contention 2f – MW (R) & JB (A) agree that raising the level by 170mm will solve this contention. This can be addressed by condition of consent.

Contentions 4a, 4b, 4c, 4d – MW & JB disagree

Contention 4f (dot point 1) - MW & JB disagree

Contention 4f (dot point 2) AW (R) & JB (A) agree to design the OSD system to incorporate the additional storage requirement for the upstream catchment. This can be addressed by way of condition of consent.

Contention 4f (dot point 3) AW (R) acknowledges that emergency overflows are now sufficient with exception to pit 12 which remains a concern.

Contentions 4f (dot points 4, 5 & 6) MW & JB disagree.”

33. I accept the engineers agreement in respect of Contention 2 that the first two issues above can be dealt with by conditions of consent. The planning issue of whether the amendment to condition 88 should be 74 or 75 children due to encumbered versus unencumbered space was the only remaining town planning issue in dispute and is considered below.

34. The Council’s position on the stormwater issue (Contention 4), as put by Mr Harker in closing submissions, is as follows:

“19….the Court should, consistently with Mr Warda’s evidence:

19.1   approve the application in part, keeping the deferred commencement condition;

19.2   but require (by condition) stormwater to be managed for the rear of the site in the manner already approved, that is by channelling the stormwater to the approved drainage pit in the south-west of the property, and through a pipeline through the school.”

35. On the planning issue (Contention 2), concerning encumbered vs unencumbered space, Mr Harker put Council’s position as follows:

“37.1 the area should be deleted as it creates encumbered space beyond that permissible for 75 children and therefore contravenes the condition;

37.2 in the alternative, condition 88 of the Consent should be amended to reduce the number of students from 78 to 74.”

36. As stated above, the Applicants Proposed Modification seeks to amend condition 88 of the Consent by reducing the currently approved number of children from 78 to 75. Therefore, the parties are only 1 child position apart in proposed numbers for the Court to decide.

37. The threshold issue in this case is whether the modified stormwater discharge system is adequate because if the Court finds that it is not sufficient, and the deferred commencement condition remains, the modifications to the Site (which raise Contention 2 issues) and consequential reduction in numbers are not needed and/or unlikely to proceed in my opinion. I will therefore firstly consider the evidence in respect of Contention 4 and the submissions made.

Contention 4 – Stormwater management – evidence

Joint Reports

38. Regarding Contentions 4(b) and 4(c), MW stated that the rear of the site below the retaining wall does not drain to a legal discharge point, in contravention of Development Engineering Guidelines, section 1, Part 2.0.

39. JB replied as follows (Ex F paras 5,6):

“JB is of the opinion that council’s guidelines do not address cases like the subject site where there is an existing ridge splitting the site into two catchments falling opposite directions. Council’s particular 4.1.4 in The Upper Parramatta River Catchment Onsite Detention Handbook 3^rd edition states below:

“Where possible, the drainage system should be designed to direct runoff from the entire site to the OSD system. Sometimes, because of ground levels, the receiving drainage system or because of other circumstances, this will not be feasible. In these cases, up to 15% of the site area may be permitted to bypass the OSD systems, provided that as much as possible of the eunoff from impervious site areas is drained to the OSD system. In our case, only 4% of the site is bypassing the OSD system which is also 100% pervious so no adverse impacts will occur on the neighbouring property.”

Warda: Emergency overflows from Pit 12 will enter downstream properties without an easement.

Bacha: is of the opinion that the introduction of pit 12 is an improvement to the existing scenario as it will be draining an existing access easement which was previously draining properties to the rear. …”

40. Under cross examination MW agreed that only 4% of the site, being the area to the west of the site, is not captured by the OSD which is an improvement on the existing approved scenario. [T:33.10-40], and therefore 96% of the water on the site goes to a legal discharge point at the street: [T:35:10]. He also agreed that that the stormwater received on the rear area is not diverted or concentrated by the Proposed Modification, and that approximately half of the Site slopes to Kissing Point Road and as such, the Site does not ‘fall away from the street’.

41. It was common ground that the legal discharge point for the Site is to Council’s drain in Kissing Point Road.

42. Regarding contention 4(d) – excessive demand on council’s stormwater system, MW and JB’s interchange was as follows in the Joint Report which I quote from directly as follows (Ex F, page 8, paras 12 – 14):

“[12] MW Council policy does not permit extensions of its stormwater system greater than 15m as per Council’s Development Engineering Design Guidelines: Section 1, Part 4.0 & 4.1 General Requirements.. In the proposed design, Mr Warda points out that the Council’s stormwater system would be extended by 35m and he is of the opinion that the proposed design attempts to chase the stormwater down the street creating an unnecessary asset for Council to maintain in perpetuity and increasing the capacity beyond what the Approved Development would create.

[13] MW As a result of filling the site and chasing the pipe down the street, a large portion of the site is directed to the street. Even though there is a slight ridge on the site, the surface levels at the road are still higher than those at the rear. Best practice would be to drain to the rear over downstream property(s) rather than unnecessarily filling for gravity drainage and extending Council’s stormwater system.

[14] JB believes that the length of the proposed line extension is reasonable and is a common stormwater disposal method that is generally accepted. Attached to Appendix 3 is a Stormwater Management Plan (DA/173/2020/B approved by Council on the 17^th of February 2023) which includes a line extension of 63 metres.”

43. Dealing with Contention 4(f), “that the proposed stormwater system does not utilise best practice stormwater design principles”, as at the date of the first Joint Report, 31 August 2023 (Ex F), there were no matters of disagreement and the engineers agreed as follows (Ex F, paras 15-16):

“Matters of Agreement

[15] With the modelling provided by JB as part of the Joint Conferencing has produced results that would indicate the HGL of the system is at a lower level that the kerb. MW has found some inconsistencies with the modelling that will be discussed later in the report.

[16] JB is of the opinion that the Top of the Kerb level adjacent to the site is generally the HGL utilised when hydraulic modelling is not available and/or water levels in the area are not known. JB has undergone hydraulic modelling utilising DRAINS software which allows designers to extract simulated water levels within underground pipe systems. The pipe leaves the subject site at 45 degrees downstream which makes it impossible for water to backflow upstream through the system when you consider the velocity and energy flows in a downstream direction.”

44. However Council’s further amendment to the SOF, added a number of additional particulars to Contention 4(f). Some agreement was reached on these additional contentions at the second joint conferencing on 28 September (Second Joint Report at Ex J – see paragraph [32] above) but Contention 4(f) dot point 1, remained in dispute. It states:

“Stormwater is to be discharged in the general direction as determined by the predevelopment topography of the site and within its natural catchment/sub catchment. Filling of sites to achieve discharge by gravity is not supported”.

45. This is a direct quote of Clause C.13 of the PDCP 2023. Contention 4(f) dot point 6 simply states Council relies on the controls in Part 5.1.3 and 5.1.4 of the PDCP 2023.

46. The engineers, Mr Bacha and Mr Warda, were also cross examined on Contention 4(f) dot points 4 and 5 which critically call into question the need in Council’s opinion for an easement (dot point 4) and that the stormwater system must be designed to ensure no adverse impact on Council’s stormwater drainage systems, waterways, the development itself or adjoining properties (dot point 5).

Submissions from the parties:

47. I was assisted in this matter with written and oral submissions from Counsel on both sides, Mr Poisel for the Applicant and Mr Harker for the Respondent Council.

Council’s submissions - Stormwater (Contention 4)

48. Mr Harker placed great emphasis on the controls in Part 5 of the PDCP 2023 (Ex A), in particular in Part 5.1.3 – Stormwater Management, and Part 5.1.4 – On-site Detention Management. Part 5.1.3 & Part 5.1.4 call up Council’s Development Engineering Design Guidelines and Part 5.1.4, relevantly, also calls up the Upper Parramatta River Catchment Trust Onsite Detention Handbook 3^rd Edition (the Handbook). These documents were in evidence and referenced by the engineers in their Joint Reports and oral evidence.

49. Mr Harker submitted that the proposal leaves the rear of the site (to the left of the retaining wall – shown on Ex G) unmanaged, consequentially much of the stormwater in that area will drain to the private open space of the property immediately to the rear, 377A Kissing Point Road, which is inconsistent with the controls in Part 5 of the PDCP 2023. In particular he refers to (Mr Harker’s underlining reproduced):

“C.06    Stormwater, including overland flows entering and discharging from the site, must be    managed. The site drainage network must provide the capacity to safely convey stormwater run-off resulting from design storm events listed in Development    Engineering Design Guidelines.

C.25   Development that requires on site detention on sites that fall away from the street or are flat are required to drain via an easement over a downstream property (or properties) to a legal point of discharge and must be designed in accordance with Council’s Development Engineering Guidelines.”

50. Mr Harker claimed that C.25 is engaged because the site falls away from the street at about its mid-point. I do not agree that the subject site fits within the wording of C.25 which I discuss further below.

51. Mr Harker further submitted that the failure to manage stormwater flows to the rear causing an impact on No 377A is potentially non-compliant with the following PDCP 2023 controls (Mr Harker’s underlining reproduced):

“C.05    Adequate provision is to be made for the control and disposal of stormwater run-off from the site to ensure that it has no adverse impact on Council’s stormwater drainage systems, waterways, the development itself, or adjoining properties.

C.14   Stormwater runoff must not adversely impact surrounding properties and adjoining infrastructure and assets through the diversion and concentration of flows.”

52. It is for these reasons as to the impact on adjoining properties to the rear that Council’s submission is that the Court should not approve deleting the deferred commencement condition for an easement but rather make orders to the following effect:

“1.1 approve the application in part, keeping the deferred commencement condition;

1.2 but require (by condition) stormwater to be managed for the rear of the site in the manner already approved, that is by channelling the stormwater to the approved drainage pit in the south-west of the property, and through a pipeline through the school. [proposed conditions 10H and 69A]”

53. Mr Harker further submits in final written submissions ‘Council concedes that the alternative stormwater design is appropriate subject to the rear portion of the site being drained through the school (consistently with the deferred commencement condition).’

Applicant’s submissions - Stormwater (Contention 4)

54. In submissions Mr Poisel summarised the oral evidence from the Council’s engineer MW Mr Warda as follows:

“In cross-examination, Mr Warda accepted the following propositions:

Pit 12 is increased in size to 600mm x 600mm which is an improvement to the approved system;

the proposed OSD system would divert stormwater from the Site to the tank at the front of the Site (ie east) before discharging the stormwater into Kissing Point Road via a 35m extension to the Council’s existing stormwater infrastructure;

the Council’s existing stormwater infrastructure has capacity for the Site’s discharge of stormwater;

in the case of a failure of the OSD system, the Site’s stormwater will still discharge to Kissing Point Road as a result of the proposed retaining wall, excepting the rear area to the west of the retaining wall (Rear Area);

the Rear Area comprises a small part of the Site (calculated at 4% by Mr Bacha);

the Rear Area is a pervious surface and excess run-off from the Site would follow the natural topography as it presently does;

the Approved Development / Proposed Modification will not result in the diversion or concentration of stormwater to downstream properties; and

the Proposed Modification is better than the Approved Development and the current conditions from a stormwater management perspective.”

55. The Applicant disagrees that the Proposed Modification cannot be approved because it is in breach of Section 1, Part 4.1 of the Development Engineering Design Guidelines which stipulates an easement for ‘sites that fall away from the street, or are flat’, and ‘filling of sites is not permitted to achieve gravity drainage’. Rather, the Applicant’s submission is that Mr Bacha’s opinions should be adopted which state the following in summary:

“92. ...the Guidelines do not address cases like the Site where there is an existing ridge splitting the Site into two catchments falling opposite directions: at [6]. Mr Bacha relies on Section 4.1.4 of the Handbook, which provides (see Council’s Bundle, Tab 18, 403):

4.1.4   Areas not directed to the OSD storages

Where possible, the drainage system should be designed to direct runoff from the entire site to the OSD system. Sometimes, because of ground levels, the receiving drainage system or because of other circumstances, this will not be feasible. In these cases up to 15% of the site may be permitted to bypass the OSD systems, provided that as much as possible of the runoff from impervious site areas is drained to the OSD system. …

93. The Proposed Modification only results in 4% of the Site (which is agreed) bypassing the OSD system and that whole area is pervious so no adverse impacts will occur on neighbouring properties: at [6].”

“75. ...Section 4.1.4 of the Handbook enables 15% of a site to bypass the OSD system if as much as possible for the impervious surfaces is drained to the system. As only 4% of the Site is not drained to the OSD system and 100% of the impervious areas on the Site will be connected to the system, Mr Bacha considers that the system is compliant with best practice.”

56. Mr Poisel submits that Mr Bacha’s interpretation is supported by the last paragraph of Section 4.1.4 of the Handbook, which provides (Tab 18, Ex A):

“For areas not draining to an OSD storage, the storage volume is still calculated on the entire site area while the PSD is adjusted downwards according to the procedures in Section 5. This makes sure the storage is fully used in the design storm.”

57. Mr Poisel’s final submissions on the additional particulars in Contention 4(f) are as follows:

“First bullet point: As part of the redevelopment of the Site, it has to be drained either to the front (ie east), the rear (ie west) or the south (ie south). The Proposed Modification seeks to drain to the front (ie Kissing Point Road). The Applicant cannot drain to the west because to the west of Lot 13 is a public reserve over which there is a general prohibition for such an easement under the PDCP 2023 and the Court has cast doubt on the ability for the grant of an easement under s 88K over community land: Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292. The Applicant cannot drain to the south through the School Land as the Department has refused an easement and it would be inappropriate for 153m pipe and, in an emergency, either uncontrolled flows through the School Land or a swale or open channel.

Second bullet point: A swale can be conditioned along the driveway of the Site providing access to Lot 13. The Applicant’s primary position is such a condition is not necessary, however it is willing to accept it.

Third bullet point: Emergency overflows have been considered and the vast majority of the Site drains to Kissing Point Road. There is the potential for some emergency flows from Pit 12 to drain across Lot 13, however this condition already exists.

Fourth bullet point: The Site does not fall away from the street (as conceded by Mr Warda).

Fifth bullet point: The Proposed Modification will not have an adverse impact on adjoining properties on the understanding that adverse requires a worsening of the current condition. The Proposed Modification improves the stormwater management for downstream properties.

Sixth bullet point: The Applicant repeats its submissions above.”

58. Mr Poisel concluded in the Applicant’s submissions that:

“the implementation of the approved stormwater system is not practical or feasible in circumstances where the Department has not agreed, the Applicant would need to commence expensive s 88K proceedings at its cost (for both sides), the Council’s evidence is that the approved system is not best practice, a 153m pipe would be installed and, in an emergency, students will be put at risk by an uncontrolled discharge or, alternatively, a 153m swale or open channel running through the middle of a playground would be required.”

Consideration & findings:

Whether the alternate stormwater discharge system is adequate:

59. The issues that I must resolve between the engineers and the evidence to decide whether the modified OSD system is adequate to justify deletion of the deferred commencement condition are:

1. Contention 4(b) – the proposed system fails to drain the whole site to a legal discharge point contrary to the Respondent’s Development Engineering Design Guidelines: Section 1, Part 2.0 General Requirements;

2. Contention 4(c) – the development concentrates flows over downstream property without an easement contrary to the Respondent’s Development Engineering Design Guidelines: Section 1: Part 4.1; and

3. Contention 4(d) – the proposed system proposes a significant extension of Council’s stormwater system contrary to the Respondent’s Development Engineering Design Guidelines: Section 1: Part 4.1.

60. Observations I made on Site on factual matters of relevance that I have discussed above at paragraph [4] and which inform my consideration of the experts opinions are as follows. My observations are supported by the evidence being the Survey (tab 17, Ex A) and the Revised Stormwater Concept Plans (Ex A, tab 14):

1. The Site is not ‘flat’;

2. The Site does not ‘fall away from the street’ and Kissing Point Road falls away to the south east from the legal discharge point in the gutter; and

3. The ‘predevelopment topography’ of the Site is significantly altered as it contains among other structures to be demolished a deep empty swimming pool and is not a reliable reference for stormwater design.

61. In my opinion Council’s contentions rely on a strict application of the relevant controls which is not supported by the evidence and a consideration of all the facts and circumstances of this appeal and the Approved Development. I find that Mr Warda’s approach is too rigid an application of the discretionary controls and guidelines, that are not intended to be, nor could be, a one size fits all mandatory requirement for stormwater management and engineering.

62. I accept the evidence of Mr Barcha and find his reasoning sound in the application of the PDCP 2023 and non-statutory controls to the subject site and the proposed modifications with reference to Council’s contentions and issues raised under cross examination. I accept and agree with the Applicant’s analysis of the evidence and conclusions drawn: see paragraphs [54 - 58] above.

63. Given the concessions made by Mr Warda under cross examination, noted above at para [54], it is no surprise that the Council conceded at the close of the evidence that the design was appropriate. However, that concession came with a catch. Council still requires an easement to drain the rear of the site through the school. Council proposed orders that reflected that position, quoted above at paragraph [52].

64. I do not agree with a hybrid system as proposed by Council whereby the mandatory requirement for a drainage easement over the school land at the rear remains in place but that the OSD be modified as per this Proposed Modification. It is not supported by the evidence and would not achieve a satisfactory outcome for this Site. Under this scenario, nothing can happen on the Site until the deferred commencement condition is satisfied. It would appear pointless to carry out the work in modifying the OSD system to drain 96% of the water on Site to the legal discharge point in the street in addition to a drainage easement to the rear, if that is successfully obtained from the NSW Department of Education (having been refused once).

65. In my respectful opinion with the OSD remodelled to the current proposal, it is highly likely the NSW Department of Education would again form the opinion, (see letter from the Department of Education at Tab 19 of Ex A), that among other reasons, a s88K easement over the Ermington West Primary School land, adopting the words of the jurisdictional test in s 88K(1) of the Conveyancing Act, is not “reasonably necessary for the effective development of the land (the Site)”. See the analysis by the Court of Appeal in Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275, where the President, Justice Bell, at [35] said “Implicit in the concept of reasonable necessity is a consideration of the alternative methods by which the proposed use or development could be achieved”. Apart from the other concerns the NSW Department of Education had, refusal would seem highly likely just for the purpose of collecting only 4% of the stormwater from the Site.

66. In summary for the above reasons and with reference to but not limited by the issues listed at paragraph [59], I find based on the evidence and my own observations on site; firstly the proposed system drains all but 4% to the legal discharge point which is acceptable and meets best practice taking into account the circumstances of the Site; secondly, the development does not concentrate flows over downstream property; and thirdly, the proposed system does not cause a significant extension of Council’s stormwater system. Having regard to C.05, C.06 and C.14 of the PDCP 2023, there are no adverse impacts on Council’s stormwater system and surrounding properties. In my opinion C.25 of the PDCP 2023 does not apply.

67. The Council has failed to make good the contentions on the evidence and I find that an easement to drain water to the rear is not required as the proposed modification to the approved stormwater system is adequate.

Contention 2 – unencumbered space – evidence & controls

68. The Proposed Modification application to the OSD system results in a reduction in the total unencumbered outdoor play area to 528 m² and consequently the application includes a reduction in numbers of children from 78 to 75.

69. Two changes to the outdoor area, the inclusion of Pit 7 and a retained area around the tree at the rear, were concerns of the Council raising this Contention.

70. Council was initially concerned that Pit 7 should not be allowed inside the unencumbered play area as it posed a risk to children. It was agreed ultimately by the engineering experts that it could be designed in a manner which was safe for children and dealt with in the appeal by a condition of consent (Joint report, Ex J).

71. Regarding the proposed retained area around the tree at the rear, identified by the experts as the area between the proposed retaining wall and the acoustic fence (hatched in red on the plan from Ex E reproduced in part in Mr Harker’s submissions as Figure 1 following). Mr Wan (Council) said that it was not suitable for children and should be excluded as outdoor space because of the change in levels, lack of surveillance and limited suitability due to its gapes and narrowness (Joint Report, Ex E, [5]). If that red area is encumbered space as Council maintains, it reduces the available unencumbered space to 519 m² which permits one less child space, i.e. to 74 children.

Figure 1: Diagram of only area of unencumbered spaces left in dispute hatched in red [reproduced from Mr Harker’s submissions] .

72. Mr Barwick’s evidence was that that the red hatched area at the rear will be finished with play mulch and stepping stones, and could be given further play utility if the retaining wall is fitted with climbing holds (Ex E, [12]). He considered that child care staff will have “ready view” into the area from numerous vantage points in the open space play area and as such a lack of surveillance opportunities does not arise (Ex E, [14]).

73. The planning controls for the amount of outdoor space required in a child care centre are as follows.

74. Section 3.26 of T&I SEPP imposes non-discretionary development standards in relation to childcare facilities.

75. Relevantly, it states at s 3.26(2)(b) that:

(i) for development to which regulation 107 (indoor unencumbered space requirements) or 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations applies—the unencumbered area of indoor space and the unencumbered area of outdoor space for the development complies with the requirements of those regulations …

76. Regulation 108 of the E&CSN Regulations relevantly provides:

1. Space requirements—outdoor space

2. …

3. The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.

Penalty: $2000.

1. In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—

   (a)    any pathway or thoroughfare, except where used by children as part of the education and care program;

   (b)    any car parking area;

   (c)    any storage shed or other storage area;

   (d)    any other space that is not suitable for children.

   77. I accept the reasoning of Mr Harker that the consideration of the standards in the T&I SEPP and E&CSN Regulations is required by s 4.55(3) EPA Act which states that the Court (as consent authority) must take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the (modification) application. That includes in s 4.15(1)(a)(i) ‘any environmental planning instrument’. Mr Poisel presented an argument to the contrary which I respectfully do not agree with as a matter of statutory construction. I note Mr Poisel made submissions on this contention in the event he be wrong.

Whether the approved numbers for children should be 74 or 75

78. Council’s town planner, Mr Wan, is of the opinion that the space is ‘not suitable for children’ as per reg 108(3)(d) of the E&CSN Regulations for the reasons set out above and should be deleted or the numbers reduced to 74.

79. Mr Wan and Mr Barwick were cross examined about the suitability and safety or otherwise of the red hatched area (figure 1 above) to be included in the unencumbered outdoor play area of the Proposed Modification to the existing approved child care centre. I have carefully considered the evidence given and have come to the conclusion that I prefer Mr Barwick’s evidence and consider that disallowing that area as outdoor space or deleting one child space is not justified by the evidence. Allowing some challenges in the playground environment for the children could equally be construed as suitable in terms of reg 108. In any event, to meet Council’s concerns, changes to the outdoor fit out were proposed by the Applicant as additional conditions of consent, 1A and 1B in Ex L. I find that draft conditions 1A and 1B should be incorporated into the consent conditions as part of this modification application.

80. I note the discussion by Justice Robson in an appeal in respect of a child care centre of the requirements under the E&CSN Regulations made under the Children Education and Care Services National Law Application) Act 2010: Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143, at [97] to [99].

81. It follows that condition 88 should be amended to read “The number of children within the childcare centre is not to exceed 75 children at any time”.

Conclusion & Orders:

82. Taking into account my reasons and all the facts and circumstances of the matter it follows that the Proposed Modifications to the approved stormwater system which by design dispense with the need for an easement to drain water to the rear of the Site, are satisfactory to the Court. Therefore, the Condition 1 deferred commencement condition of the Consent, requiring an easement under s88K of the Conveyancing Act, should be deleted.

83. As the modified stormwater system requires some changes to the outside space on the Site, the Applicant recognised the approved numbers of children for the development would need to be reduced. Accordingly condition 88 of the Consent is to be amended from 78 to 75 children for the reasons set out above.

84. The amended conditions proposed by the Applicant in [Ex K] are adopted and are set out in the orders made by the Court in Annexures A and B.

85. The Court orders that:

1. The appeal is upheld and the Modification application, as amended, is granted.

2. Development consent No. DA/399/2020 is modified in the terms in Annexure A.

3. Development Consent No. DA/339/2020 as modified by the Court is Annexure B.

4. The Exhibits are returned.

L Byrne

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 03 April 2024